Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Respondent has stipulated that Petitioners have "standing" to challenge the rules and the policy and procedure directives which are the subject of this proceeding. At the time the petition in this cause was filed, Petitioners challenged the validity of Rule 33-3.081, Florida Administrative Code, as it existed as of its latest revision on May 22, 1981. However, subsequent to the filing of the petition in this cause, and prior to the date of final hearing, Respondent amended Rule 33-3.081, and filed these amendments with the office of the Secretary of State on June 23, 1983. At final hearing in this cause, the parties stipulated to the Petitioners maintaining a challenge to newly amended Rule 33-3.081(4), (5), and (9)(a) and (d), Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.11, which was subsequently revised on June 14, 1981. This directive contains 13 separately titled sections. The first section, entitled Authority, simply lists the authority, both statutory and rule-based, for issuance of the directive. Section three contains definitions which, with a single exception not relevant here, are identical to those contained in Rule 33-3.081(2). Sections four through thirteen likewise recapitulate provisions contained in Respondent's rules or in relevant statutes. The following is a list of titles of sections four through thirteen, each of which is followed with a parenthetical reference of the rule provision substantially incorporated therein: Staff Selection (33- 3.081(10)); Basis for Placement (33-3.081(1)); Placement (33-3.081(4)); Protection Cases (33-3.082); Visiting (33-3.081 (5)); Gain Time (33-11.11 and Section 944.28, Florida Statutes); Review of Administrative Confinement (33- 3.081(6)); Self-Improvement Programs (33-081(7)); Facilities (33-3.081(8)); General Provisions (33-3.081(9)(a)-(k)). Sections 13(l) and (m) of the policy and procedure directive essentially reiterate the provisions of Rule 33-3.081(6) and 33-3.081 (11) , respectively. On or about June 14, 1981, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.20, entitled "Discipline." This directive which purportedly issued pursuant to the authority contained in Sections 944.09, 944.14, 944.15, 944.28 and 945.21, Florida Statutes, and Chapter 33-3.08, Florida Administrative Code. In fact, each of the 20 separately numbered portions of this directive substantially recapitulate requirements already contained in Rule 33-3.08, Florida Administrative Code. The single exception is Section 7 of the directive, entitled Administrative Confinement, which finds its support in Rule 33-3.081. Neither Policy and Procedure Directive 4.07.11 nor Policy and Procedure Directive 4.07.20 purport to create or otherwise adversely affect rights of inmates in any manner which differs from corresponding provisions of Rules 33- 3.081, 33-3.08 or the provisions of the Florida Statutes cited as authority for issuance of the policy and procedure directive. Rather, the rights of inmates are specifically determinable pursuant to those cited statutory provisions and the requirements of Rules 33-3.081 and 33-3.08, and the challenged policy and procedure directives simply recapitulate the requirements contained therein.
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes (2015),1/ Petitioner forfeited his Florida Retirement System (“FRS”) Investment Plan account by entering a nolo contendere plea to two counts of violating section 893.13(2)(a)1., Florida Statutes, a second-degree felony.
Findings Of Fact The Events Giving Rise to this Proceeding Mr. Combs began working for DOC on May 25, 2001, as a Correctional Officer Level 1 at the Union Correctional Institution (“Union Correctional”) in Raiford, Florida. Union Correctional is a maximum security facility housing approximately 2,000 inmates, and Mr. Combs assisted with their care and custody. In January of 2006, Mr. Combs earned a promotion to Correctional Officer, Sergeant. While his responsibilities were very similar to those of his previous position, Mr. Combs was now supervising other correctional officers. In October of 2011, Mr. Combs earned a promotion to Correctional Officer, Lieutenant, and was responsible for supervising 50 to 70 correctional officers at Union Correctional. In April of 2013, Mr. Combs earned a promotion to Correctional Officer, Captain, and transferred to Florida State Prison in Starke, Florida. A captain is the highest ranking correctional officer on a given shift, and Mr. Combs supervised approximately 50 correctional officers at a time, including sergeants and lieutenants. Like Union Correctional, Florida State Prison is a maximum security facility housing approximately 2,000 prisoners. A colonel manages Florida State Prison, and it has two separate units. One of those units is a work camp housing lower- custody inmates who may work outside the facility, and the main prison is the other unit. Each of the units is run by its own major. In February of 2015, Mr. Combs was promoted to Major and took charge of the work camp at Florida State Prison. At some point in 2014 and prior to his promotion to Major, Mr. Combs had begun taking Oxycodone recreationally. Mr. Combs typically purchased one Oxycodone pill three to four times a week, and Dylan Hilliard (a Correctional Officer 1 at Florida State Prison) was Mr. Combs’ primary source of Oxycodone. Mr. Hilliard usually worked at the main prison, but he occasionally worked at the work camp. Mr. Combs knew Mr. Hilliard because of their employment with DOC. Mr. Combs purchased Oxycodone from Mr. Hilliard at the latter’s home in Lawtey, Florida. However, some transactions occurred in Mr. Combs’ state-issued housing on the grounds of Florida State Prison. Mr. Hilliard charged Mr. Combs $35 for an Oxycodone pill, and that was a discount from the $38 price Mr. Hilliard charged others. Mr. Combs allowed his subordinates (Sergeants Jesse Oleveros and Evan Williams) to leave Florida State Prison during their shifts in order to purchase illegal drugs from Mr. Hilliard. After returning from their transactions with Mr. Hilliard, Mr. Oleveros and Mr. Williams would give Mr. Combs an Oxycodone pill free of charge. Operation Checkered Flag was a joint task force led by the Bradford County Sheriff’s Office, and its purpose was to arrest individuals involved with the distribution and use of illegal drugs. The authorities arrested Mr. Hilliard after he engaged in an illegal drug transaction with an undercover agent from the Florida Department of Law Enforcement. A subsequent search of Mr. Hilliard’s cell phone revealed text messages between Mr. Hilliard and several other DOC employees, including Mr. Combs. Mr. Hilliard referred to Mr. Combs as “Chicken-Hawk” or “Hawk” in those text messages, and the two of them used car part terminology as a code for different milligram sizes of Oxycodone. Operation Checkered Flag ultimately resulted in the arrest of 10 DOC employees. The authorities arrested Mr. Combs on July 1, 2015, based on allegations that he had committed six felonies relating to the alleged unlawful and illegal purchase and distribution of Oxycodone. DOC fired Mr. Combs on approximately July 1, 2015. Mr. Combs initially denied all of the allegations. However, after spending nearly 56 days in jail, Mr. Combs reached an agreement with the State Attorney’s Office in Bradford County that called for his criminal charges to be reduced in exchange for his cooperation with Operation Checkered Flag. During an interview on August 20, 2015, with members of Operation Checkered Flag, Mr. Combs admitted that he had purchased Oxycodone from Mr. Hilliard. In addition, Mr. Combs admitted that on six or seven occasions he allowed Mr. Oleveros and Mr. Williams to leave the prison grounds so that they could purchase Oxycodone from Mr. Hilliard. The State Attorney’s Office in Bradford County chose to dismiss most of the charges against Mr. Combs. The Information ultimately filed against Mr. Combs set forth two counts alleging that he violated section 893.13(2)(a)1., by illegally purchasing Oxycodone on March 23, 2015, and March 31, 2015. Those purchases occurred approximately 10 miles from Florida State Prison at Mr. Hilliard’s residence in Lawtey, Florida. Neither Mr. Combs nor Mr. Hilliard was on duty during those transactions. On August 25, 2015, Mr. Combs pled nolo contendere. The Bradford County Circuit Court entered judgment against Mr. Combs based on the two violations of section 893.13(2)(a)1., but withheld adjudication. All of the conduct underlying Mr. Combs’ nolo contendere plea occurred while he was employed by DOC. The SBA Determines that Mr. Combs Forfeited his FRS Benefits At all times relevant to the instant case, Mr. Combs was a member of the FRS. The FRS is the legislatively-created general retirement system established by chapter 121, Florida Statutes. See § 121.021(3), Fla. Stat. The SBA is the governmental entity that administers the FRS Investment Plan, a defined retirement benefits contribution plan. § 121.4501(1), Fla. Stat. Via a letter dated August 3, 2015, the SBA notified Mr. Combs that a hold had been placed on his FRS account due to the criminal charges. As a result, no distribution of employer contributions from Mr. Combs’ account would be permitted until the SBA had evaluated the final disposition of those criminal charges. Via a letter dated September 3, 2015, the SBA notified Mr. Combs that he had forfeited his FRS benefits as a result of his nolo contendere plea. In support thereof, the SBA cited section 112.3173, Florida Statutes, which provides for the forfeiture of a public employee’s FRS retirement benefits upon the entry of a nolo contendere plea to certain types of offenses. The SBA’s letter closed by notifying Mr. Combs of his right to challenge the SBA’s proposed action through an administrative hearing. Mr. Combs requested a formal administrative hearing and asserted that the crimes for which he was convicted did not fall within the scope of section 112.3173(2)(e). In other words, Mr. Combs argued that his convictions were not associated with his employment at DOC and thus did not amount to a violation of the public trust. Testimony Adduced at the Final Hearing Mr. Combs testified that he was responsible for the work camp and the supervision of the correctional officers assigned there. He also testified that he would occasionally supervise correctional officers who normally worked in the main prison. Mr. Combs testified that Mr. Hilliard was his primary source of Oxycodone and that Mr. Hilliard occasionally worked at the work camp. Mr. Combs was aware that two Florida State Prison employees who worked directly under him (Sergeant Jesse Oleveros and Sergeant Evan Williams) were purchasing Oxycodone from Mr. Hilliard. Mr. Combs testified that he allowed Mr. Oleveros and Mr. Williams to leave Florida State Prison grounds six or seven times in order to purchase Oxycodone from Mr. Hilliard. Mr. Combs testified that Mr. Oleveros and Mr. Williams would give him an Oxycodone pill after returning from their transactions with Mr. Hilliard. Mr. Combs acknowledged during his testimony that DOC policy prohibits correctional officers from leaving prison grounds during their shift. Mr. Combs acknowledged that it was a violation of DOC policy and Florida law to allow a correctional officer to leave prison grounds during a shift for the purpose of purchasing illegal narcotics. Mr. Combs also acknowledged that it was a violation of DOC policy and Florida law to allow a correctional officer to be on prison grounds with illegal narcotics. Finally, Mr. Combs acknowledged that as a sworn officer with the Department of Corrections, he had an obligation to report any criminal activity committed by a correctional officer working at Florida State Prison, regardless of whether that correctional officer reported to him. Findings of Ultimate Fact An examination of the circumstances associated with Mr. Combs’ Oxycodone purchases from Mr. Hilliard demonstrates that there is a nexus between Mr. Combs’ employment as a correctional officer with DOC and his commission of the crimes to which he pled nolo contendere. For instance, Mr. Combs came to know his primary source of Oxycodone (Mr. Hilliard) through their mutual employment with DOC. Indeed, Mr. Combs supervised Mr. Hilliard when the latter was assigned to the work camp at Florida State Prison. Also, Mr. Combs knew that these transactions were illegal. As noted above, he and Mr. Hilliard used a code based on car part references to disguise the actual subject of their communications. Contrary to DOC policy and Florida Law, Mr. Combs allowed two of his subordinates (Mr. Oleveros and Mr. Williams) to leave Florida State Prison during their duty shifts in order to purchase illegal drugs from Mr. Hilliard. Mr. Combs would then receive a free pill from Mr. Oleveros and Mr. Williams. Mr. Hilliard sold Oxycodone to Mr. Combs at a reduced price. It is reasonable to infer that Mr. Combs received this discount due to his high-ranking position at Mr. Hilliard’s place of employment and because Mr. Combs facilitated Mr. Oleveros and Mr. Williams’ purchases of Oxycodone from Mr. Hilliard. Mr. Combs willfully violated DOC policy and Florida law by allowing correctional officers to leave prison grounds during a shift for the purpose of purchasing illegal narcotics. Mr. Combs knowingly violated his obligation as a sworn correctional officer by not reporting the criminal activity committed by Mr. Hilliard. Mr. Combs defrauded the public from receiving the faithful performance of his duties as a correctional officer. The public had a right to expect that one of its employees would not purchase drugs from someone he supervised. The public also had a right to expect that Mr. Combs would not use his authority at Florida State Prison to facilitate Mr. Hilliard’s illegal drug sales to other DOC employees. In addition, the public had a right to expect that Mr. Combs would not engage in illegal transactions on the grounds of Florida State Prison. Mr. Combs realized a profit, gain, or advantage through the power or duties associated with his position as a Major at DOC. Specifically, Mr. Combs satisfied his Oxycodone habit through purchases made from a DOC employee who he supervised. Also, Mr. Combs used his position to facilitate other sales by Mr. Hilliard, and Mr. Combs’ assistance led to him receiving free Oxycodone and a discounted price on his Oxycodone purchases. The findings set forth above in paragraphs 49 through 57 are the only ones needed to establish a nexus between Mr. Combs’ public employment and the two counts to which he pled nolo contendere. That nexus is evident from Mr. Combs’ testimony, Mr. Combs’ Responses to the SBA’s Requests for Admissions, and the Stipulated Facts. It was not necessary to consider the exhibits to which Mr. Combs raised objections, i.e., the arrest warrant, the warrant affidavit, and the audio recordings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner was a public employee convicted of specified offenses that were committed prior to retirement, and that pursuant to section 112.3173 he has forfeited all of his rights and benefits in his Florida Retirement System Investment Plan account, except for the return of his accumulated contributions as of the date of his termination. DONE AND ENTERED this 10th day of May, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2016.
The Issue Whether Broward County committed the unlawful employment practice alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should Petitioner be granted by the Florida Commission on Human Relations.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. Among the various departments of County government is the Community Services Department. The Libraries Division is administratively located within the Community Services Department. The Libraries Division operates a main library, five regional libraries, 36 branch libraries, and various reading centers. There are approximately 900 employees in the Libraries Division, about 200 more than there were in 2000. Librarian IV is a "high level administrative position" in the Libraries Division. The position description for Librarian IV (which has been in effect at all times material to the instant case) reads as follows: Nature of Work This is professional work at the administrative level of the library system. Work involves responsibility for assisting administrative superiors and coordinating assigned major units of the library system. Work involves assisting in interpreting and implementing all library policies, assisting in staffing and supervising assigned major units, and assisting in coordinating support services within the library system and with other agencies. Duties are performed with considerable independence and initiative within the framework of established policies and procedures. Work is subject to review and evaluation through periodic conferences, attainment of desired management objectives, and conformity with established policies and procedures. Distinguishing Characteristics This class is distinguished from Librarian III by the additional administrative responsibilities. Illustrative Tasks Assists administrative superiors in coordinating, staffing, and supervising the operations of assigned major units of the library system; assists in coordinating library system supportive services. Assists subordinate librarians in planning, coordinating, and organizing specific functional, programmatic, and physical aspects of library services and facilities. Assists in interpreting and implementing all library policies. Serves as assistant library staff officer for contacts and communications services within the county library system and the community at large. Conducts assigned library research and procedural studies; prepares reports relative to recommended solutions or courses of action. Cooperates with governmental and private agencies in special surveys, studies, and programs. Performs related work as required. Knowledge, Abilities and Skills Considerable knowledge of professional library principles, practices, and techniques. Considerable knowledge of the current literature, trends, and developments in the field of library science and administration appropriate to the areas of specialization. Considerable knowledge of general community needs and interests in relation to library services in the areas of specialization. Considerable knowledge of the principles of supervision, organization, and administration. Considerable knowledge of research techniques and the sources and availability of current information. Ability to analyze facts and exercise sound judgment in decision making. Ability to plan, direct, and coordinate the work of subordinates. Ability to express ideas effectively, both orally and in writing. Ability to serve the public and fellow employees with honesty and integrity in full accord with the letter and spirit of Broward County's Ethics and Conflict of Interest policies. Ability to establish and maintain effective working relationships with the general public, co-workers, elected and appointed officials and members of diverse cultural and linguistic backgrounds regardless of race, religion, age, sex, disability or political affiliation. Desirable Experience and Training A Master's Degree in library science from a college or university accredited by the American Library Association; considerable experience of a supervisory nature in the operation of a library system, including some experience in administrative aspects of the work; or any equivalent combination of training and experience. In or about the fall of 1999, the County issued a job announcement for a Librarian IV position (Librarian IV Job Announcement), which read, in part, as follows: CIVIL SERVICE OPPORTUNITY OPEN-COMPETITIVE Librarian IV Salary Range- $38,552-$57,168 per year DESCRIPTION OF DUTIES: This is professional work at the administrative level of the library system. Work involves assisting administrative superiors in coordinating, staffing, and supervising the operations of assigned major units of the library system; assisting in coordinating library system supportive services; and assisting subordinate librarians in planning, coordinating and organizing specific functional, programmatic, and physical aspects of library services and facilities. Employees in this class assist in interpreting and implementing all library policies; serve as assistant library staff officer for contacts and communication services within the county library system and the community at large; conduct assigned library research and procedural studies; and prepare reports relative to recommended solutions or courses of action. Work also involves cooperating with governmental and private agencies in special surveys, studies, and programs. Performs related work as required. QUALIFICATION REQUIREMENTS: Master's Degree in Library Science from a college or university accredited by the American Library Association and five (5) years experience in a supervisory capacity in the operation of a library system or a major library, which must have included six (6) months experience in administrative aspects of the work. BASIS OF RATING: NO WRITTEN TEST IS REQUIRED The selection procedure shall consist of two parts. Part I will be an unassembled rating consisting of an evaluation of experience, training and education shown on the application, plus any corroborative or supplementary information which may be obtained. Part II will be an oral panel interview designed to evaluate each applicant's knowledge in this field of work. Applicants must attain a passing score on both parts of the examination to be certified. In arriving at a final numeric score which will determine the order of the eligible list for the position the following values will be applied. Unassembled Rating- 50% Oral Panel Interview- 50% * * * EXAMINATION, NOTICE OF RATING AND TERM OF ELIGIBILITY: Candidates who complete the application and exam process are sent a Notice of Rating indicating if they are qualified for the position. Status of the eligible list established from this announcement is for one year beginning with the issue date of the Notice of Rating. . . . * * * STARTING PAY: Starting salary is normally the minimum of the salary range. * * * SPECIAL ACCOMMODATION AND COMMUNICATION NEEDS: Broward County is pleased to provide necessary reasonable accommodations in the testing process for disabled applicants. It is the responsibility of applicants requesting reasonable accommodation to submit requests in writing to the Applications Center staff at the time of submission of the application. . . . * * * NOTE: Upon completion of the rating portion of the examination, only candidates who are considered most qualified will be invited to participate in an oral panel interview. The remaining qualified applicants will stay on record and may be invited in for an oral panel interview at a later time. As necessary, the list established under this announcement may be used to selectively certify on a promotional basis Classified County Merit System Regular Employees. The Librarian IV Job Announcement was widely advertised. Petitioner is a highly experienced and accomplished librarian having both a masters degree and doctorate in library science. He met the "qualification requirements" set forth in the Librarian IV Job Announcement. After seeing the Librarian IV job announcement, Petitioner submitted an application for the position. Documents he attached to the application revealed that his date of birth was June 20, 1932 (although the application form that he filled out did not ask for such information). Petitioner has various health problems, but he did not request any special "accommodation in the testing process." (Petitioner has had "lens implants in [his] eyes [since] 1999," but he still needs to use a magnifying glass to read. In addition to having poor eyesight, he has been diagnosed with Charcot's foot (a foot deformity) and autonomic neuropathy (which "causes [him] to get dizzy when [he] get[s] up or climb[s] stairs or if [he] walk[s] too far or tr[ies] to get out of bed")). The United States Department of Veterans Affairs has determined that Petitioner has a 100 percent service-connected disability. Petitioner was one of 26 applicants who responded to the Librarian IV Job Announcement. All 26 applications received by the County were reviewed by a panel of three County employees. The panel consisted of two "subject matter experts" and one human resources person. Susan Stokes2 and Miriam Hershenson were the two "subject matter experts" on the panel. They were both Librarian V's. The remaining panel member was Cynthia Munn, a Human Resource Analyst II. Petitioner was one of 17 applicants to be selected, based upon the panel's evaluation of the application materials submitted, for an oral interview before the panel. Fifteen of the 17 selected applicants, including Petitioner, appeared for such an "oral panel interview." Each applicant was interviewed separately by the panel. "[T]he interviews [were] all conducted in the same manner." At the outset of each interview, the applicant was advised that the interview would last 25 to 30 minutes and that the "time factor" should be "ke[pt] in mind" in answering the panel's questions. It was emphasized that answers should be "clear and concise." The interview questions were "formulated ahead of time" by the panel's "subject matter experts," Ms. Stokes and Ms. Hershenson. A total of ten questions were used during the interview process. The questions were asked in the same sequence during each interview "in an effort to make it an even playing field." Following the interview, each panel member, without discussing the matter with the other two members of the panel, independently rated the applicant's interview performance. Petitioner was interviewed on or about January 28, 2000. Like the other 14 interviews, Petitioner's interview was "strictly an oral [one]." Contrary to the assertion made in Petitioner's employment discrimination charge, he did not use a magnifying glass during the interview. Indeed, there was no need for him to do so since there was no reading (or writing, for that matter) involved as part of the interview. Petitioner did not physically stumble, nor was he unsteady on his feet at any time during the interview. Petitioner performed poorly during his interview. His answers were rambling and, at times, non- responsive. The panel's efforts to "redirect and refocus him" were unavailing. He was so long-winded that he was only able to answer five questions in the time allotted for the interview (which was the same amount of time the other interviewees were given). Ms. Munn gave Petitioner failing scores of "F" in "communicative skills" and "D" in "job knowledge." Petitioner also received a failing score (of "C") in "communicative skills" from Ms. Hershenson. Neither Petitioner's age, nor his poor eyesight and other health problems, were factors in either Ms. Munn's or Ms. Hershenson's scoring of Petitioner's interview performance. The scores that they gave him were based solely on their good faith evaluation of how Petitioner performed during his interview. Petitioner was not extended an offer by the County to fill a Librarian IV position. The County hired (as Librarian IV's) four of the 15 applicants who were interviewed by the "oral interview panel." One of these new hires had a hearing impairment, to compensate for which she used hearing aids and lip read. According to their applications, all four of the applicants who were hired received their undergraduates degrees at least seven years after Petitioner received his undergraduate degree,3 and the three that provided the date of their high school graduation on their applications graduated high school at least 16 years after the date (1949) Petitioner's application indicates he received his high school diploma. There has been no persuasive showing made that the County's decision not to offer Petitioner employment was motivated by anything other than legitimate business considerations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding the County not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 11th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2003.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioners are inmates incarcerated at Baker and Zephyrhills Correctional institutions. The proposed ruled, Rule 33-3.0055, entitled "Law Libraries," is intended to provide guidelines for the operation of institutional law libraries and the use of inmate law clerks by those incarcerated within the facility. Petitioners currently use and, in the future, will require the use of law library facilities. Petitioners law library needs require access to federal as well as state reference materials. The subject matter of the reference materials required runs the legal gamut: administrative, civil and criminal. Accordingly, they will be substantially affected by the implementation of the proposed rule by the Department. The challenged proposed rule is divided into five categories [the fifth category is erroneously numbered (4)]. Those categories are: general provisions; law library access; content of law libraries; inmate law clerks; and law library advisory council. The general provisions category of the proposed rule acknowledges that the Department is to provide adequate access to the courts and to legal materials for inmates in the custody of the Department. That section further instructs each institution with a law library to develop operating procedures regulating the operation of the law library. Thus, the rule delegates to the facility superintendents the responsibility of coordinating all operations related to the law libraries and of training personnel and inmate staff who are to carry out that operation. This section does not identify which institutions will have libraries. The second section of the proposed rule, law library access, directs the superintendent of an institution to establish library hours and schedules to permit each inmate "maximum access" to legal materials consistent with that facility's security. That section provides no guidelines or minimum criteria outlining what the Department deems adequate to provide such "maximum access." Subsection (b) states that inmates in administrative or disciplinary confinement need not be taken to the library if that would create a security or safety risk but does not provide sufficient guidelines for how the facility might arrange to have materials made available to such inmates. Frequently, inmates are unaware of what materials are needed for reference and are unaware of procedural rules related to their cases. Inmates relying on materials furnished by inexperienced law clerks have missed court deadlines, have filed inadequate documents, or have had to request extensions in order to comply with deadlines. The content of the law libraries is addressed in section (3) of the proposed rule. That section provides that institutions will have "major, minor, and starter collection" law libraries based upon their size, location, inmate need and mission. The proposed rule does not describe which institution will receive which collection nor does it explain how inmate need and mission relate to the location, size or content of a facility's library. Inmates incarcerated at Baker require access to federal and state reference materials. Whether the library at Baker will contain those materials in the future is unknown. Currently, inmates at Baker must request copies of cases not available at Baker from other institutions which may or may not have same. Delays in obtaining and copying reference materials inhibit inmates from timely filing court documents. The proposed rule provides that inmate law clerks shall be assigned to assist inmates in the research and use of legal materials. That section does not provide for minimum training of such clerks nor does it address how inmates are to be assisted when the "first-come, first-serve" basis is inadequate to meet court imposed or procedural deadlines. Moreover, the proposed rule does not address what training, if any, institution personnel will have in order to assist inmate law clerks to provide appropriate guidance. Previously, and at the time this proposed rule was promulgated, the operation of library programs at Baker and other institutions fell under the authority of the Correctional Education School Authority (CESA). Budget cuts within the CESA resulted in the elimination of a librarian position at the Baker facility. In order to keep the library open, a correction officer has been assigned to supervise the library. Consequently, the library facility is available during that individual's work shift. Chapter 91-281, Laws of Florida, amended Section 20.315, Florida Statutes, to authorize the Department to provide library services. Institutional Operating Procedures (IOP) govern the operation of the law library at Baker. Staffing and operation of the library is left to the discretion of the officer opening and closing the facility. The library at Baker is not subject to a minimum number of hours of operation. Law clerks at Baker have assisted inmates in administrative, disciplinary, or protective confinement when those inmates had a deadline provided such inmate could prove they had such deadline. Inmates are often unaware of procedural deadlines until such deadlines have passed. Both Mr. Cook and Mr. O'Brian requested clarifications from the Department's legal office regarding how the proposed rule would be implemented at Baker to resolve issues related to the operation of the law library but received no responses. Staff at Baker have had no legal training and are unfamiliar with how to conduct legal research. Consequently, inmates are left to their own resources and frequently use inmate law clerks who have become self-trained from working on their own cases. At Marion Correctional Institution (Marion) inmates are afforded additional services in connection with the law library. Access to typewriters and copy machines are available so that inmates may complete documents related to their cases. The law library at Marion receives requests each month from inmates at other facilities who are seeking legal assistance or copies of cases not available at their institutions. Like inmates in a confined status, inmates assigned to work camps do not have direct access to legal materials. Such inmates must request materials and legal assistance from adjacent facilities. In one instance, an inmate was required to file a grievance before access to legal materials was granted. Inmates who have requested legal reference materials from other correctional institutions have waited as long as six months to receive responses from a request. At Baker, inmates have had to forego educational opportunities in order to have access to the law library during its hours of operation when class schedules conflicted with law library hours. The Department has considered the proposed rule over a period of six to seven years since the litigation of the Hooks v. Wainwright decision began. Problems arise between inmates when law clerks show favoritism toward one inmate over another inmate. Thus, it is appropriate to devise a system to place all inmates on notice of how inmate law clerks are to prioritize their time and assistance.
Findings Of Fact The Petitioners, Luis A. Pacheco, Joel Estremera, Felipe Pichardo and Owen D. Denson, are inmates in the custody and control of the Department. The Department is a state agency. On December 26, 1991, the Petitioners filed a Petition for Determination of the Invalidity of an Existing Rule against the First Respondents. The Petition was filed against "John T. Shaw, Superintendent, Glades Correctional Institution, et. al." In the Petition, the Petitioners challenged the validity of "the revision of Glades Correctional Operating Procedure 91-07, sec. 7.09" pursuant to Sections 120.54 and 120.56, Florida Statutes. The Petition failed to challenge a rule or an alleged rule of any "agency" as that term is defined in Section 120.52(16), Florida Statutes. On January 10, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered granting a Motion to Dismiss filed by the First Respondents and giving the Petitioners an opportunity to file an amended petition on or before January 21, 1992. No amended petition was filed by the Petitioners on or before January 21, 1992. Therefore, on January 29, 1992, an Order Concerning Proposed Final Orders was entered informing the parties that they could file proposed final orders on or before February 24, 1992, and that this Final Order would be entered on or before March 16, 1992. On February 7, 1992, the Petitioners filed an Amended Petition for Determination of Invalidity of An Existing Rule and requested that it be accepted. On February 25, 1992, an Order Concerning Amended Petition was entered accepting the Amended Petition and informing the parties that this case would be disposed of by a summary final order. In the Amended Petition the Department was named as the Respondent. Although the amended petition indicates that the Petitioners are challenging Rule 33-5.01, Florida Administrative Code, pursuant to Sections 120.52, 120.54 and 120.56, Florida Statutes, in fact the Petitioners are challenging a memorandum issued at Glades Correctional Institution changing Policy and Procedure Directive 3.04.12 (hereinafter referred to as the "Policy and Procedure Directive"). In the Amended Petition the Petitioners allege, in part, the following: Respondent through his designee, John T. Shaw, has adopted exhibit " A " as a rule, which governs petitioners [sic] visitors to select from, " Saturday or Sunday as their regular visiting day. Petitioners are therefore substantially " affected " and this case includes an invalid exercise of delagated [sic] authority because the department of corrections failed to promulgate it's Policy and Procedure Directive number 3.04.12 as a rule, contrary to the requirements of section 944.09, Florida Statutes. The Amended Petition fails to challenge a rule or an alleged rule of any "agency" as that term is defined is Section 120.52(16), Florida Statutes.
The Issue The issue is whether the correctional officer certification of Steven S. Wright should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Steven S. Wright is a certified correctional officer, having been issued certificate number 43-88-502-05 on December 19, 1988. Mr. Wright was employed as a Correctional Officer I at Lake Correctional Institute in June 1989. On the morning of June 20, 1989, and on other occasions, Mr. Wright had discussed drugs with inmates. He did not encourage or support the use of drugs. He believed these discussions were a useful part of the rehabilitation process. Later on June 20, 1989, Inmate Clinton Gholson approached Mr. Wright in the Food Services area and placed a piece of paper in Mr. Wright's pocket. Mr. Wright was planning to be married in a short time. Gholson had indicated that he and some other inmates wanted to make a wedding present for Wright in Arts and Crafts. Because inmates are generally prohibited from giving gifts to correctional officers, Mr. Wright and Gholson had agreed to a paper work process which was to be followed if Gholson and the others wished to make the gift for Mr. Wright. Authorization was to be sought before Mr. Wright actually received the gift. Gholson was to give Mr. Wright a choice of gifts Gholson could make. Mr. Wright understood that Gholson was to give him a short written list from which to pick. While Mr. Wright was working on June 20, 1989, Gholson approached him from behind and slipped the piece of paper into Mr. Wright's back pocket. Gholson indicated it was the gift list and Mr. Wright was to circle the gift he wanted. Gholson said something like, "You do that and that's what we'll make." Mr. Wright did not look at the note then. He forgot about it and finished his work. When Mr. Wright got home that evening, he discovered the note in his pocket. When he opened it, instead of a gift list, he found $3.00 and a note asking Mr. Wright to smuggle drugs (a "twenty cent piece") into the prison and they would make $240.00 from it. Mr. Wright was scheduled off from work the next two days. He was afraid he would lose his job because of what Gholson had done. When Mr. Wright returned to work on June 23, 1989, he told Sergeant Alexander what had happened. She sent him to Major Collier to make a report. Wright made the report and submitted it. He had forgotten to bring the note and money that day, so he could not attach it to the report. When Mr. Wright returned home that night, the note and money were gone. It was never determined if his wife or his nephew or someone else had thrown it away. Once Gholson knew he had Mr. Wright in a bad position, he used it to his advantage. He began demanding money from Mr. Wright and stated at various times that he had given Mr. Wright $10.00 to buy drugs and that he had loaned Mr. Wright $10.00. Mr. Wright reported these incidents immediately. When Gholson wrote another note demanding $10.00, Mr. Wright immediately turned that note over to Major Collier. A hearsay statement from Gholson in the form of a taped interview was submitted into evidence. It is found that Gholson's statements are so unbelievable as to be unworthy of any credibility. Even if the statements were not hearsay, they would be too unbelievable to form the basis for a finding of fact. Mr. Wright was fired from his job at Lake Correctional Institute as a result of these incidents and Gholson's statements. While there are some insignificant inconsistencies among the various statements and reports given by Mr. Wright, I find that his testimony and account of these events is absolutely credible and worthy of belief. While it is not disputed that Mr. Wright left the correctional institute on June 20, 1989, with a note and $3.00 which Gholson slipped into his pocket, it is affirmatively found that Mr. Wright had unwittingly done so. Mr. Wright had no idea that Gholson had placed money into his pocket until he reached home later that night. Mr. Wright did not knowingly accept money from Gholson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a Final Order dismissing all charges against Steven S. Wright. RECOMMENDED this 10th day of June, 1991, at Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1991.
The Issue Petitioner's charge of discrimination dated April 13, 1995, alleges that the Orange County Public Library discriminated against her on account of her race and disability: by terminating her for tardiness, by refusing to accommodate her disability but accommodating other employees, and by more closely monitoring and scrutinizing her. The issues for resolution in this case are whether the alleged discrimination occurred and if so, what relief is appropriate.
Findings Of Fact Petitioner, Aundra Jones (Ms. Jones), was hired by the Orange County Public Library in December 1990. Her primary duty as a circulation clerk was shelving books. At the time that she was hired, Ms. Jones completed a medical history form that revealed no medical problems and no limitations to her normal functions. Ms. Jones received her first personnel rating on March 6, 1991. On a scale of 1-9, with 9 being the top rank, she received a score of 5 in all areas except interpersonal relations, in which she received a score of 6. Ms. Jones's next rating was March 12, 1992. She received mostly 5's, two 4's, and a 1 (the lowest score possible) in attendance. Her supervisor noted that Ms. Jones's attendance record was poor and needed improvement as she had missed 132.5 hours in a 12-month period. Nevertheless, she was recommended for, and received, a one-step merit increase in salary. On December 13, 1992, the library initiated a punctuality policy for all employees. This policy provided that each employee was required to be at his or her work station without delay at the scheduled time. Any delay that was not approved in advance was considered a "tardy." Even though some tardiness might be understood, a record of eight or more tardies, regardless of duration or cause, within an annual merit review cycle, would result in a written warning and may result in a final warning or termination. In January 1993, Ms. Jones took a second job as a reservationist at Steiganberg Reservation Services. Her shift began at 6:00 p.m. and she was scheduled to work there approximately 25 hours a week. In February 1993, Ms. Jones sustained some unspecified job injury and was required to stay home for several weeks to recover. She was told by her doctor to lift no more than five pounds and, since that would be virtually impossible at the library, she and the library staff agreed that she should recover at home from what was classified as a temporary condition. On April 6, 1993, Ms. Jones received her annual personnel rating summarized as "needs improvement." She was rated "1" in attendance and punctuality, and her supervisor noted that she used 112 hours of sick leave in 1992 and was tardy ten times between March 1992 and March 1993. On November 17, 1993, Ms. Jones's supervisor met with her and gave her a verbal warning with regard to her punctuality. By this time she had received eight tardies in the first six months of her annual review period. One of the tardies was a "scheduled" absence for a doctor's appointment, however, and this occasion was not a basis for later discipline of Ms. Jones. A special evaluation in March 1994 noted continued attendance problems, requiring leave without pay when all accrued vacation, sick, and floating holiday time had been exhausted. On April 25, 1994, Ms. Jones received her annual personnel rating, an "unsatisfactory," with scores of "1" in performance, attendance, and punctuality. Prior to this rating the library had placed Ms. Jones on Family Medical Leave on several occasions. It also attempted to adjust Ms. Jones's scheduled days so that she could go to the doctor on her days off, but she said she needed time with her family and preferred to have weekends off. A change in job assignment at the library was offered, but the hours conflicted with Ms. Jones's night job, and she refused the change. On May 12, 1994, Ms. Jones's doctor, a rheumatologist, diagnosed her condition as fibromyalgia and noted on her work status form that Ms. Jones should have light duty for two weeks and that the restriction would be temporary. The library accommodated this and other temporary restrictions, including restrictions on lifting, standing, and full-time shifts, over the next several months. The library terminated Ms. Jones on January 16, 1995. By that time she had been late to work eight times in the first eight and a half months of her annual review cycle. The library did not penalize Ms. Jones for her appointed medical absences, but rather applied its policy described in paragraph 4, above, to her chronic tardiness. There is no credible evidence that the library singled out Ms. Jones based on her race or physical condition. Between November 1994 and April 1998, the library terminated nine employees who were not African-Americans for violations of its punctuality policy. During her employment with the library, Ms. Jones applied for, but was denied, transfer to several positions. In no case was she denied the transfer because of her race or physical condition. In fact, as found above, she was offered and she refused a transfer to a less physically-demanding position at the circulation desk. Ms. Jones auditioned with other candidates for a position as storyteller. Her audition was unsuccessful as she was nervous and forgot the story at various times. Ms. Jones was also interviewed for other promotions. In one case another African-American employee received the promotion, and in the other cases, the library presented unrefuted evidence that more qualified candidates were hired. Ms. Jones felt that her physical condition should have warranted her being given a parking space in the library garage. However, the spaces there were assigned according to seniority and there were no spaces available for her. For a temporary period she had a handicapped parking sticker but this was withdrawn by her physician when she no longer met the guidelines. Ms. Jones alleged that the head of circulation, Wendi Jo Bost, harassed and belittled her on account of her race and physical condition. Ms. Bost was involved with Ms. Jones's immediate supervisors and Ms. Jones in attempting to remediate the persistent attendance problems. After Ms. Jones did not respond to a request for suggestions on accommodating the need to schedule doctors' appointments, Ms. Bost changed her days off. When Ms. Jones complained that she wanted Saturdays to spend with her family, Ms. Bost accommodated that request. Ms. Bost was a well-trained, experienced, and competent professional librarian. She routinely hired and promoted African-Americans. Her no-nonsense style of management extended to all employees, without consideration for race or physical condition; she was criticized at times by employees, including whites and non-disabled employees, for her strict management style. There is scant evidence in the record of this proceeding of Ms. Jones's disability. A monograph on fibromyalgia syndrome, received in evidence without objection, reflects that the pain and fatigue of the disease tends to come and go. It is a chronic condition, but neither fatal nor crippling. Ms. Jones sought medical treatment from a series of different health care providers and sought relief in a variety of treatments. She plainly became frustrated at her inability to obtain lasting relief. While she missed work frequently on account of her condition, she concedes that most of her tardiness was not the result of her illness. Moreover, Ms. Jones considered herself able to perform her duties at the library while at work there and maintained a series of part-time jobs as well as her full-time library employment. She is, and was, able to perform normal household chores. At hearing, Ms. Jones did not identify any specific limitations of activity based on her diagnoses of fibromyalgia, except an inability to be out in the sun.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: the Florida Commission on Human Relations enter its Final Order dismissing the Charge of Discrimination or Petition for Relief by Aundra Jones against the Orange County Public Library. DONE AND ENTERED this 18th day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1998. COPIES FURNISHED: Aundra Jones, pro se 510 Auburn Avenue Altamonte Springs, Florida 32714 Mary Wills, Esquire 255 South Orange Avenue Suite 801 Orlando, Florida 32801-3452 Susan K. McKenna, Esquire Garwood, McKenna, McKenna & Wolf, P.A. 31 North Garland Avenue Orlando, Florida 32801 Dana Baird, Esquire Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308-7082 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308-7082
The Issue Whether Respondent's teaching certificate should be revoked pursuant to Chapter 231, Florida Statutes, as set forth in petition, dated November 8, 1979.
Findings Of Fact Respondent Robert Marshall Stabler holds Florida Teaching Certificate No. 306751, Graduate, Rank III, valid through June 30, 1981, covering the area of elementary education. He was so licensed on May 9, 1979. (Stipulation.) Respondent was employed in the public schools of Brevard County at Pineda Elementary School, Cocoa, Florida, as a teacher from 1971 to May 1979. Respondent was also employed by Brevard Community College to instruct inmates at the Brevard Correctional Institution at Sharpes, Florida, for several years prior to May 9, 1979. (Testimony of Fisher, Brock, Curtis.) In late April 1979 a correctional officer at the Brevard Correctional Institution received information from a confidential informant, who was an inmate, that Respondent would bring marijuana into the institution on May 9, 1979. On that date, at approximately 6:15 p.m., Respondent entered the correctional facility and was advised by a correctional officer that college instructors were going to be searched that evening. Respondent was asked to submit to such a search and he consented to the same. Respondent was thereupon directed to the nearby "shakedown" room where his briefcase was opened and three packages wrapped in white paper were discovered. At this time, Respondent stated "That's just for my own use." A white envelope containing thirteen five dollar bills was also found in the briefcase. A narcotics officer of the Brevard County Sheriff's Department thereupon weighed and made a standard field test of the material contained in the packages and determined that it was cannabis in excess of 100 grams. The officer then placed Respondent under arrest for introducing contraband upon the grounds of a correctional institution. The packages were thereafter submitted to the Sanford Crime Laboratory for analysis and it was determined that they contained a total of 106.6 grams of cannabis and that two of these packages contained more than five grams of cannabis leaf material. (Testimony of Fisher, Pierce, Steger, Thomas, Boling, Petitioner's Exhibits 1-4.) The regulations of the Brevard Correctional Institution authorize a search of visitors which is normally conducted on a random basis. If consent to search is not given, the non-consenting individual is not permitted to enter the institution. (Testimony of Thomas.) Respondent received outstanding teacher performance evaluations at Pineda Elementary School during prior years and is considered by his principal to be an above-average teacher. Another faculty member at the school characterized him as an "excellent" teacher. He excelled in dealing with students with disciplinary problems and had excellent relations with both students and faculty personnel. He was also considered by his supervisor and a fellow instructor to be the most outstanding teacher at the Brevard Correctional Institution who was highly successful in motivating his students. (Testimony of Curtis, Brock, Walker, Weimer, Respondent's Composite Exhibit 1.)
Recommendation That Respondent's teaching certificate be revoked for a period of four years. DONE AND ENTERED this 12th day of May 1980 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May 1980. COPIES FURNISHED: Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32301 Craig Wilson, Esquire 315 Third Street West Palm Beach, Florida 33401 R. V. Richards, Esquire 1526 South Washington Avenue Titusville, Florida 32780
